Patna High Court
Kanhaiya Kumar & Ors vs The State Of Bihar & Ors on 14 May, 2015
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11687 of 2007
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1. Kanhaiya Kumar son of Sri Shyamjit Paswan, resident of village Goshaimath
Nawada, P.S. Phulwarisharif, Patna
2. Gyaneshwar Jha son of Sri Digambar Jha, resident of village and p.o.
Gaimislagma P.S. Ghanshyampur, Darbhanga
3. Sanjay Kumar Thakur son of Lakshmi Thakur, resident of village and p.o.
Muraitha P.S. Jala, Darbhnaga
4. Sunil Kumar Singh son of Raj Kishore Singh resident of village- Samarha P.O.
Hardiyah, P.S. Biliyan, Bhojpur, Ara
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Secretary, Home (Police) Department, Govt. of Bihar, Patna
3. The Director General cum Inspector General of Police, Bihar, Patna
4. The Inspector General of BIhar Military Police, Patna
5. The Deputy Inspector General of Police, Human Rights, Patna
6. The Deputy Inspector General of Police, Uttari Mandal, Bihar Military Police,
Muzaffarpur
7. The Commandant, Bihar Military Police, 6 at Muzaffarpur
8. The Commandant, Bihar Military Police-13 at Darbhanga
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Shyma Prasad Mukherjee, Sr. Cousnel
For the State Mr. Anshuman Singh
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL JUDGMENT
Date: 14-05-2015
The petitioners assail the order dated 13.08.2007
(Annexure-1) passed by the Deputy Inspector General of
Police, Bihar Military Police, Muzaffarpur, rejecting the
representation of the petitioner which was filed in the light of
the order passed in CWJC No. 8197 of 2002 which was
considered and dispose of by common order passed in a
batch of writ petitions (as contained in annexure-7).
2 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015
2/8
Chequered background of the case may be noted
with relevant brevity. The respondents issued advertisement
no. 01/98 inviting applications from the eligible candidates
under various categories for appointment on the post of
Constable in the Bihar Military Police (BMP). Out of 339
vacancies, 155 were for BMP-6 and 186 for BMP-13. The
petitioners applied and claimed to have cleared the written test
followed by physical test conducted by the Selection
Committee. They claimed to have figured in a list of the
successful candidates. The writ application asserts that only
107 candidates who were successful both at the written and
the physical test were selected and appointed. The last
appointment was made in September, 2001. The Director
General of Police (DGP) by order dated 27.01.2001
(Annexure-5) directed for fresh measurement of the physical
fitness/eligibility in order to make further appointment.
However, by another communication dated 05.10.2001, The
DGP directed all concerned to stop any appointment from the
list prepared pursuant to the said advertisement. In such
circumstances, the petitioners and many others filed several
writ petitions. The writ petition of the petitioners (CWJC No.
8197 of 2002) was heard along with other batch of writ
3 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015
3/8
petitions and disposed of by a common order dated
23.03.2007permitting the petitioners to make representation before the Deputy Inspector General of Police and others higher officials for consideration and disposal. In the light of the said order, the representation(s) filed by the petitioners (Annexure-8 series) was/were considered and rejected by order dated 13.08.2007 (Annexure-1) which has been challenged in the present writ application.
Heard Mr. Shyama Prasad Mukherjee, learned Sr. Counsel for the petitioners and Mr. Anshuman Singh the counsel for the State. Parties have exchanged their pleadings.
It has been submitted, inter alia, on behalf of the petitioners that the DGP having given a go-ahead/nod to make further appointment of the candidates who had taken written and physical test later abruptly stopped. This was with a view to effect/change in the relevant provisions covering the eligibility of the appointment. Once the advertisement has been issued the eligibility cannot be changed until the appointments are made. It has been stated that only 107 candidates were selected in the process of selection undergone by the respondents pursuant to the advertisement published in 1998. The respondents are 4 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015 4/8 therefore obliged to consider the case of the petitioner. The respondents have not disputed the fact that the petitioners had appeared both at the written test and physical test which were conducted pursuant to the advertisement in 1998. They also participated in the physical test whereafter a master chart was prepared showing the relevant measurement of the candidates which includes the chest and height etc. From the said merit list 107 candidates who were better than the petitioners in physical measurement/fitness under respective category were selected and appointed. The last appointment of the candidates pursuant to the said advertisement was made in September, 2001. The case of the petitioners in the light of the order of the Court was considered and rejected under the impugned order which is self explanatory. This Court would extract the said order hereinbelow which reads thus:-
"lh0MCyw0ts0lh0 ua0 5705@01] 16046@01] 12171@01] 14389@01 ,oa lh0MCyw0ts0lh0 ua0 8197@02 esa ikfjr U;k; fu.kZ; ds vkyksd esa ;kfpdkdRrkZvksa }kjk vH;kosnu lefiZr fd;k x;k ftlesa foKkiu la0 01@98 ds rgr flikgh ds in ij fu;qfDr gsrq iw.kZekih dk vuqjks/k fd;k x;k gSA vH;kosnu esa mYys[k fd;k x;k gS fd mudh mapkbZ vHkh rd ftu lcls vafre mEehnokj dh dksfVokj fu;qfDr dh x;h gS mudh mapkbZ ls T;knk gSA iw.kZekih dj flikgh ds in ij 5 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015 5/8 ;ksxnku djk;k tk;saA vH;kosnd }kjk lefiZr vH;kosnu dh leh{kk dk;kZy; esa miyC/k vfHkys[kksa ds vk/kkj ij djus ds nkSjku ik;k x;k fd bu lHkh vH;kosndksa dh mapkbZ viuh dksfV ftu vafre mEehnokjksa dh dksfVokj fu;qfDr dh x;h gS muls ;k fu/kkZfjr ekinaM ls de ik;h x;h vkSj blh vk/kkj ij budh fu;qfDr ugha dh x;h A ekLVj pkVZ esa tgka budh mapkbZ vafdr gS ogka budk viuh mapkbZ ds lkeus gLrk{kj gS tks ;g izekf.kr djrk gS fd ;s viuh mapkbZ ds eki ls larq"V FksA Pwafd ,sls Hkh foKkiu la0 01@98 ds vkyksd esa vuojr pyus okyh flikgh dh fu;qfDr dk;e j[kus dh izfdz;k dks ekuuh; mPp U;k;ky; esa nk;j fofHkUu ;kfpdk lh0MCyw0ts0lh0 la0 8304@99 rFkk vU; ;kfpdk,Wa ;Fkk 3825@2000] 4310@2000] 11090@99] 11093@99] 11167@99] 11662@99] 3397@2000] 4075@2000] 4792@2000 ,oa 3838@2000 esa ekuuh; mPp U;k;ky; eas lquok;h ds ckn ekuuh; mPp U;k;ky; }kjk fn0 15-07-2005 dks ikfjr vkns'k ds }kjk [kkfjt dj fn;k x;k gS] ftl lanHkZ esa iqfyl eq[;ky; ds Kkikad 6127@ih&2 fnukad 25-11-2006 ds }kjk vkns'k vko';d fdz;kFkZ izsf'kr dh x;h gS] tks Lor% Li'V gSA vr,o ,slh fLFkfr esa ;kfpdkdRrkZ 'kadj lkg] eks0 rtxwy] lathr dqekj] /kuUt; dqekj] dUgS;k dqekj ,oa lquhy dqekj flag ds vH;kosnu esa of.kZr igyqvksa ,oa ifjfLFkfr;ksa ij fopkj djrs gq, ekuuh; U;k;ky; }kjk ikfjr mi;qZDr vkns'k ds vkyksd esa buds vH;kosnu dks vLohd`r fd;k tkrk gSA"
In the supplementary counter affidavit it has been stated that no one having lesser height than the petitioner(s) has been appointed. It has further been stated that the master
6 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015 6/8 chart which prepared after the verification of physical fitness/measurement (which is loosely called the merit list) contains the signature of all the candidates who appeared thereat including the petitioners which demonstrate that they were satisfied with the measurement. Diverse documents in this regard have been enclosed with the supplementary counter affidavit. No reply thereto has been filed.
This Court finds that several writ petitions were filed in this Court for identical/similar relief(s). A Single Bench of this Court passed few orders which were found conflicting and the matter, on reference, was heard by a Division Bench, presided over by the Acting Chief Justice. The Division Bench noticed that the advertisement in the case was issued in 1998. By virtue of the police order no. 202/81 height of the candidate was considered as most important criteria for selection of the candidate who cleared the written test of average standard. The physical fitness or measurement was the criteria for eliminating the candidate having lesser height. After the present selection process at least two fresh advertisement was also issued and fresh selection process has already started. This Court in the said judgment (copy whereof has been enclosed as Annexure A to counter 7 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015 7/8 affidavit), observed as under:-
"Process of appointment in pursuance of a particular advertisement cannot be allowed to be unending business and go on for long time, thus depriving the candidates who subsequently become eligible. After sometime, the employer is entitled to have a fresh advertisement to fill up the vacancies. This discretion cannot be taken away by this court by issuing direction to consider the cases on the basis of old advertisement of 1998. The stand of the State in he counter affidavit is that there was manipulation in mentioning the heights of the petitioners at the time of selection and on re-measurement, lessor height was found by the appointing authority and as such they have been denied the appointment.
Similar question arising out of advertisement No.1 of 1998 had gone to the Apex Court in Civil Appeal No. 2711 of 2002 which was disposed of on 15th April, 2002 and the Apex Court set aside the order of this court by which direction was issued for appointment to the post of constable on the basis of said advertisement and held that efforts were made to check the manipulation and as such the High Court committed error in issuing a
8 Patna High Court CWJC No.11687 of 2007 dt.14-05-2015 8/8 mandamus for appointment of the respondents before the Supreme Court as a Constable."
From the materials on record it does not appear that a case has been made out by the petitioner that any person in his respective category having lesser height as recorded in the master chart has been offered appointment letter. The Court cannot direct the respondents to continue to make appointment from the master chart or the list which was prepared at least 14 years back. Such direction would defeat the interest of the applicant/candidate who now would have become eligible to apply for the post. This was one of the reasons for the division bench to reject the writ petition.
These reasons persuade me to dismiss the writ petition. I order accordingly.
(Kishore Kumar Mandal, J) HR/-
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